Access to Justice in the EU for Victims of
Corporate Related Human Rights Abuse
June 2015 - Tilburg
Richard Meeran
Key factors in ensuring access to justice against MNCs
1. Existence of legally actionable claim providing adequate remedy
2. Evidence available to support legal case to requisite standard of proof
3. A court having jurisdiction and willing to exercise it
4. Availability of adequate legal representation
5. In compensation claims - adequacy of damages – MNC ability to pay
6. Harassment/intimidation of victims
British oil firm paid Congo army chief to silence opponents, says watchdog
Global Witness finds proof that British company searching for oil in Africa’s
oldest national park paid thousands of dollars to a Congolese military officer
Criminal/Regulatory action
1. Regulators have inadequate resources and/or inclination
2. Criminal standard of proof.
3. Criminal penalties = inadequate deterrent.
4. Liability of individual directors/managers may be hard to establish, legally.
5. No extra-territorial enforcement available in MNC home courts for harm
caused in developing countries
“At Prieska, the conditions around and
about the mill are not good. The crusher is
out of doors. Fibre comes in on the
windward side of the mill and is crushed in
the open. We saw this opening on several
occasions and it was obvious that quite a
cloud of dust was being produced and
being blown away by a fairly strong wind
towards the town…the mixer was raised
from the floor of the general warehouse
area and had a very dusty platform. Men
were working below in a rain of dust.”
(1962 Dr WJ Smither Chief Medical Officer
Cape plc)
Civil cases
1. Nature, scale and complexity of cases - public funding virtually impossible.
2. Victims cannot afford to pay lawyers and experts.
3. Big law firms conflicted
Chronology of UK MNC tort claims
•
1995–1998:
Connelly v RTZ Corporation Plc (Namibian uranium mine and throat cancer)
•
1995–1997:
Ngcobo & Ors v Thor Chemicals Holdings Ltd & Desmond Cowley (mercury
poisoning of South African workers)
•
1997–2000:
Sithole & Ors v Thor Chemicals Holdings & Desmond Cowley (mercury
poisoning of South African workers)
•
1997–-2003:
Lubbe & Ors v Cape Plc (7,500 South African asbestos miners and local residents)
•
2006-2009:
Motto v Trafigura (30,000 Cote D’Ivoire residents alleging personal injuries from toxic waste)
•
2007–present: Ocensa Pipeline litigation v BP Oil Exploration (claim by 73 Colombian campesinos for
damage to land)
•
2009–July 2011: Guerrero v Monterrico Metals Plc (claim for torture/mistreatment of 33 indigenous
Peruvian environmental protesters)
•
2011–present: Bodo Community v Shell Petroleum Development Company (Nigeria) Ltd (SPDC) (claim
by a Nigerian fishing Community in Ogoniland for environmental damage caused by oil leaks)
•
2011-present:
•
2013-present
Kesabo & 11 Others v African Barrick Gold Plc & NMGML Ltd (claim for Tanzanian
villagers/prospectors shot by police guarding mine)
•
2013–present
Condori Vilca & Others v Xtrata Ltd & Xtrata Tintaya SA (claim by 21 Peruvians allegedly shot by
police and/or mine security)
Vava & Others v Anglo American South Africa Ltd (South African gold
miners’ silicosis mass claim in England)
for
Key issues in civil cases in MNC home courts
1. Jurisdiction
2. Corporate veil
3. Access to documents
4. Damages
5. Class/group action procedures
6. Funding/legal representation
Jurisdiction
1. Forum non conveniens US, Canada, Australia
2. Bhopal vs Union Carbide; Connelly v RTZ ; Cape plc
3. Article 2 Brussels I Regulation (EU)
4. Local subsidiary as a co-defendant
“..the availability of financial assistance in this
country coupled with its non- availability in the
appropriate forum, may exceptionally be a
relevant factor in this context. The question,
however, remains whether the Plaintiff can
establish that substantial justice will not in the
particular circumstances of the case be done if the
plaintiff has to proceed in the appropriate forum
where no financial assistance is available“
Connelly v RTZ HL
Brussels I Regulation on jurisdiction and the recognition of
judgments in civil and commercial matters
Article 2
1. Subject to this Regulation, persons domiciled in a Member
State shall, whatever their nationality, be sued in the courts
of that Member State (Owusu v Jackson ECJ 2005)
Article 60
1. For the purposes of this Regulation, a company or other
legal person or association of natural or legal persons is
domiciled at the place where it has its:
(a) statutory seat, or
(b) central administration, or
(c) principal place of business
MNC duty of care
1. Shell, Trafigura
2. Parent company cases
3. Security & human rights cases
4. Rome II Regulation
“….in appropriate circumstances the law may impose on a parent company
responsibility for the health and safety of its subsidiary’s employees. Those
circumstances include a situation where, as in the present case, (1) the
businesses of the parent and subsidiary are in a relevant respect the same;
(2) the parent has, or ought to have, superior knowledge on some relevant
aspect of health and safety in the particular industry; (3) the subsidiary’s
system of work is unsafe as the parent company knew, or ought to have
known; and (4) the parent knew or ought to have foreseen that the
subsidiary or its employees would rely on its using that superior knowledge
for the employees’ protection. For the purposes of (4) it is not necessary
to show that the parent is in the practice of intervening in the health and
safety policies of the subsidiary. The court will look at the relationship
between the companies more widely. The court may find that element (4) is
established where the evidence shows that the parent has a practice of
intervening in the trading operations of the subsidiary, for example
production and funding issues.”
Chandler v Cape plc - Court of Appeal - April 2012
Access to documents
1. Importance especially in parent co cases
2. US, UK
3. Other EU
4. Reversal of burden of proof
Class/group actions
1. Importance is mass claims
2. Opt out/Group actions
3. Impact on cost
Funding/legal representation
1. Scale & complexity of MNC cases
2. Feasibility of public funding
3. Lawyers on contingency fees – risks & incentives
4. Relationship with issues of jurisdiction, availability of cause of action,
documents and magnitude of damages (Rome II)
5. Role of litigation funders